1
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF MICRO THERAPEUTICS, INC.
A DELAWARE CORPORATION,
AND
MICRO THERAPEUTICS, INC.
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER, dated as of November 6, 1996
(this "Agreement"), is between MICRO THERAPEUTICS, INC., a Delaware corporation
("MTI Delaware"), and MICRO THERAPEUTICS, INC., a California corporation ("MTI
California"), which corporations are sometimes referred to herein as the
"Constituent Corporations".
R E C I T A L S:
A. MTI Delaware is a corporation duly organized and existing
under the laws of the State of Delaware and has an authorized capital of
15,635,992 shares, 10,000,000 of which are designated "Common Stock", $.001 par
value per share, and 5,635,992 of which are designated "Preferred Stock", $.001
par value per share. As of October 14, 1996, 100 shares of Common Stock were
issued and outstanding, all of which were held by MTI California and no shares
of MTI Delaware Preferred Stock were outstanding.
B. MTI California is a corporation duly organized and existing
under the laws of the State of California and has an authorized capital of
15,635,992 shares, 10,000,000 of which are designated "Common Stock", without
par value, and 5,635,992 of which are designated "Preferred Stock", $.001 par
value per share. As of October 14, 1996, 1,370,500 shares of Common Stock were
outstanding, 833,333 shares of Series A-1 Preferred Stock were outstanding,
900,000 shares of Series A-2 Preferred Stock were outstanding, 1,890,909 shares
of Series B Preferred Stock were outstanding, and 1,933,700 shares of Series C
Preferred Stock were outstanding.
C. The Board of Directors of MTI California has determined that,
for the purpose of effecting the reincorporation of MTI California in the State
of Delaware, it is advisable and in the best interests of MTI California and its
shareholders that MTI California merge with and into MTI Delaware, upon the
terms and conditions herein provided.
D. The respective Boards of Directors of MTI Delaware and MTI
California have approved this Agreement and have directed that this Agreement be
submitted to a vote of their respective stockholders and executed by the
undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, MTI Delaware and MTI California hereby agree, subject to the
terms and conditions hereinafter set forth, as follows:
I.
MERGER
1.1 Merger. In accordance with the provisions of this Agreement,
the Delaware General Corporation Law and the California General Corporation Law,
MTI California shall be merged with and into MTI Delaware (the "Merger"), the
separate existence of MTI California shall cease and MTI Delaware shall be, and
is herein sometimes referred to as, the "Surviving Corporation", and the name of
the Surviving Corporation shall be "Micro Therapeutics, Inc."
1.2 Filing and Effectiveness. The Merger shall become effective
when the following actions have been completed:
2
(a) This Agreement has been adopted and approved by the
stockholders of each Constituent Corporation in accordance with the
requirements of the Delaware General Corporation Law and the California
General Corporation Law;
(b) All of the conditions precedent to the consummation of the
Merger specified in this Agreement and required under Delaware General
Corporation Law and California General Corporation Law have been
satisfied or duly waived by the party entitled to satisfaction thereof;
(c) An executed Certificate of Merger or an executed
counterpart of this Agreement meeting the requirements of the Delaware
General Corporation Law has been filed with the Secretary of State of
the State of Delaware; and
(d) An executed Certificate of Merger or an executed
counterpart of this Agreement meeting the requirements of the
California General Corporation Law has been filed with the Secretary of
State of the State of California.
The date and time when the Merger shall become effective, as
aforesaid, is herein called the "Effective Time of the Merger".
1.3 Effect of the Merger. At the Effective Time of the Merger, the
separate existence and corporate organization of MTI California shall cease and
MTI Delaware, as the Surviving Corporation, shall continue its corporate
existence under the laws of the State of Delaware.
II.
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation
of MTI Delaware as in effect immediately before the Effective Time of the Merger
shall continue in full force and effect as the Certificate of Incorporation of
the Surviving Corporation until duly amended or repealed in accordance with the
provisions thereof and applicable law.
2.2 Bylaws. The Bylaws of MTI Delaware as in effect immediately
before the Effective Time of the Merger shall continue in full force and effect
as the Bylaws of the Surviving Corporation until duly amended or repealed in
accordance with the provisions thereof and applicable law.
2.3 Directors and Officers. The directors and officers of MTI
California immediately before the Effective Time of the Merger shall be the
directors and officers of the Surviving Corporation until the expiration of
their current terms and until their successors have been duly elected and
qualified, or until their prior resignation, removal or death, subject to the
Certificate of Incorporation and the Bylaws of the Surviving Corporation.
III.
MANNER OF CONVERSION OF STOCK
3.1 MTI California Shares. Upon the Effective Time of the Merger,
each share of MTI California Common Stock, without par value, issued and
outstanding immediately before the Effective Time of the Merger shall, by virtue
of the Merger and without any action by the Constituent Corporations, by the
holder of such shares or by any other person, be converted into and exchanged
for one (1) fully paid and nonassessable share of Common Stock of the Surviving
Corporation. Upon the Effective Time of the Merger, each share of Series A-1
Preferred Stock, Series A-2 Preferred Stock, Series B Preferred Stock and Series
C Preferred Stock of MTI California, each without par value, issued and
outstanding immediately before the Effective Time of the Merger shall, by virtue
of the Merger and without any action by the Constituent Corporations, by the
holder of
2
3
such shares or by any other person be converted into and exchanged for one (1)
fully paid and nonassessable share of Series A-1 Preferred Stock, $.001 par
value, Series A-2 Preferred Stock, $.001 par value, Series B Preferred Stock,
$.001 par value, and Series C Preferred Stock, $.001 par value, respectively, of
the Surviving Corporation.
3.2 MTI California Options and Stock Purchase Rights. At the
Effective Time of the Merger, the Surviving Corporation shall assume and
continue the stock option plans and all other employee benefit plans of MTI
California. At the Effective Time of the Merger, each outstanding and
unexercised option to purchase MTI California Common Stock shall become an
option to purchase the Surviving Corporation's Common Stock on the basis of one
(1) share of the Surviving Corporation's Common Stock for each share of MTI
California Common Stock issuable pursuant to any such option, under the same
terms and conditions and exercise price per share.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of stock options, stock purchase rights
and convertible securities equal to the number of shares of MTI California
Common Stock so reserved immediately before the Effective Time of the Merger.
3.3 MTI Delaware Common Stock. Upon the Effective Time of the
Merger, each share of Common Stock, $.001 par value, of MTI Delaware issued and
outstanding immediately before the Effective Time of the Merger shall, by virtue
of the Merger and without any action by MTI Delaware, by the holder of such
shares or by any other person, be canceled and returned to the status of
authorized but unissued shares.
3.4 Exchange of Certificates. After the Effective Time of the
Merger, each holder of an outstanding certificate representing shares of MTI
California Common Stock may, at such stockholder's option, surrender the same
for cancellation to the Surviving Corporation, and each such holder shall be
entitled to receive in exchange therefor a certificate or certificates
representing the number of shares of the Surviving Corporation's Common Stock or
Preferred Stock into which the surrendered shares were converted as herein
provided. Until so surrendered, each outstanding certificate theretofore
representing shares of MTI California Common Stock or Preferred Stock shall be
deemed for all purposes to represent the number of shares of the Surviving
Corporation's Common Stock or Preferred Stock into which such shares of MTI
California Common Stock or Preferred Stock were converted in the Merger.
The registered owner on the books and records of the Surviving
Corporation of any such outstanding certificate shall, until such certificate
has been surrendered for transfer or conversion or otherwise accounted for to
the Surviving Corporation, have and be entitled to exercise voting and other
rights with respect to and to receive dividends and other distributions upon the
shares of the Surviving Corporation represented by such outstanding certificate
as provided above.
Each certificate representing shares of Common Stock and Preferred
Stock of the Surviving Corporation so issued in the Merger shall bear the same
legends, if any, with respect to restrictions on transferability as the
certificates of MTI California so converted and given in exchange therefor,
unless otherwise determined by the Board of Directors of the Surviving
Corporation in compliance with applicable laws.
If any certificate for shares of MTI Delaware stock is to be issued
in a name other than that in which the certificate surrendered in exchange
therefor is registered, it shall be a condition of issuance thereof that the
certificate so surrendered shall be properly endorsed and otherwise in proper
form for transfer, that such transfer otherwise be proper and that the person
requesting such transfer pay any transfer or other taxes payable by reason of
issuance of such new certificate in a name other than that of the registered
holder of the certificate surrendered or establish to the satisfaction of MTI
Delaware that such tax has been paid or is not payable.
3
4
IV.
TRANSFER OF ASSETS AND LIABILITIES
4.1 Transfer of Assets and Liabilities. On the Effective Date, (i)
the rights, privileges, powers and franchises, both of a public as well as of a
private nature, of each of the Constituent Corporations shall be vested in and
possessed by the Surviving Corporation, subject to all the disabilities, duties
and restrictions of or upon each of the Constituent Corporations; (ii) all
rights, privileges, powers and franchises of each of the Constituent
Corporations, all property, real, personal and mixed, of each of the Constituent
Corporations, all debts due to each of the Constituent Corporations on whatever
account and all things in action or belonging to each of the Constituent
Corporations shall be transferred to and vested in the Surviving Corporation;
(iii) all property, rights, privileges, powers and franchises, as well as all
other interests, shall be as effectively the property of the Surviving
Corporation as they were of the Constituent Corporations before the Effective
Date; and (iv) the title to any real estate vested by deed or otherwise in
either of the Constituent Corporations shall not in any way be impaired by
reason of the Merger. Notwithstanding the foregoing, (i) the liabilities of the
Constituent Corporations and of their stockholders, directors and officers shall
not be affected by the Merger; (ii) all rights of creditors and all liens upon
any property of either of the Constituent Corporations shall be preserved
unimpaired notwithstanding the Merger; and (iii) any claim existing or action or
proceeding pending by or against either of the Constituent Corporations may be
prosecuted to judgment as if the Merger had not taken place; provided, however,
that the claims and rights of the creditors of either or both of the Constituent
Corporations may be modified with the consent of such creditors; and, provided
further, that all debts, liabilities and duties of or upon each of the
Constituent Corporations shall attach to the Surviving Corporation and
accordingly may be enforced against it to the same extent as if such debts,
liabilities and duties had been incurred or contracted by it.
4.2 Further Assurances. From time to time, as and when required by
MTI Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of MTI California such deeds and other instruments, and
there shall be taken or caused to be taken by it such further and other actions
as shall be appropriate or necessary in order to vest or perfect in or conform
of record or otherwise by MTI Delaware the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of MTI California and otherwise to carry out the purposes of this
Agreement, and the officers and directors of MTI Delaware are fully authorized
in the name and on behalf of MTI California or otherwise to take all such
actions and to execute and deliver all such deeds and other instruments.
V.
GENERAL
5.1 Covenants of MTI Delaware. MTI Delaware covenants and agrees
that it will, on or before the Effective Time of the Merger:
(a) Qualify to do business as a foreign corporation in the
State of California and in connection therewith, irrevocably appoint an
agent for service of process as required under the provisions of
Section 2105 of the California General Corporation Law.
(b) File all documents with the California Franchise Tax Board
necessary for the assumption by MTI Delaware of all of the franchise
tax liabilities of MTI California.
(c) Take such other actions as may be required by the
California General Corporation Law.
5.2 Deferral. Consummation of the merger may be deferred by the
Board of Directors of MTI California for a reasonable period of time if the
Board of Directors determines that deferral would be in the best interests of
MTI California and its shareholders.
4
5
5.3 Amendment. The parties hereto, by mutual consent of their
respective Boards of Directors, may amend, modify or supplement this Agreement
in such manner as may be agreed upon by them in writing at any time before or
after adoption and approval of this Agreement by the stockholders of MTI
Delaware and MTI California, but not later than the Effective Time of the
Merger; provided, however, that no such amendment, modification or supplement
not adopted and approved by the stockholders of MTI Delaware and MTI California
shall adversely affect the rights of such stockholders or change any of the
principal terms of this Agreement.
5.4 Abandonment. At any time before the Effective Time of the
Merger, this Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either MTI California or of MTI
Delaware, or of both, notwithstanding the approval of this Agreement by the
shareholders of MTI California or by the stockholders of MTI Delaware, or by
both.
In the event of abandonment of this Agreement, as above provided,
this Agreement shall become wholly void and of no effect, and no liability on
the part of either Constituent Corporation or its Board of Directors or its
stockholders shall arise by virtue of such termination except as provided in
Section 5.5 hereof.
5.5 Expenses. If the Merger becomes effective, the Surviving
Corporation shall assume and pay all expenses in connection therewith not
theretofore paid by the respective parties. If for any reason the Merger shall
not become effective, MTI California shall pay all expenses incurred in
connection with all the proceedings taken in respect of this Agreement or
relating thereto.
5.6 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is located at The ▇▇▇▇▇▇▇▇-▇▇▇▇ Corporation
System, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and The
▇▇▇▇▇▇▇▇-▇▇▇▇ Corporation System, Inc. is the registered agent of the Surviving
Corporation at such address.
5.7 Agreement. Executed copies of this Agreement will be on file
at the principal place of business of the Surviving Corporation at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, #▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and, upon request and without cost,
copies thereof will be furnished to any stockholder of either Constituent
Corporation.
5.8 Governing Law. This Agreement shall in all respects be
construed, interpreted and enforced in accordance with and governed by the laws
of the State of Delaware and, so far as applicable, the Merger provisions of the
California General Corporation Law.
5.9 Counterparts. In order to facilitate the filing and recording
of this Agreement, the same may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
5
6
IN WITNESS WHEREOF, this Agreement having first been approved by
resolutions of the Boards of Directors of MTI Delaware and MTI California is
hereby executed on behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized.
MICRO THERAPEUTICS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_____________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
ATTEST:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Secretary
MICRO THERAPEUTICS, INC.,
a California corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_____________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
ATTEST:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Secretary
6